EXHIBIT 99.5
INTELLECTUAL PROPERTY AGREEMENT
BETWEEN
EQUIFAX INC.
AND
CERTEGY INC.
JUNE 30, 2001
TABLE OF CONTENTS
ARTICLE I DEFINITIONS............................................................................... 2
Section 1.1. Definitions..................................................................... 2
ARTICLE II CONVEYANCE OF CERTAIN ASSETS; ASSUMPTION OF CERTAIN LIABILITIES.......................... 7
Section 2.1. Transferred Equifax Assets...................................................... 7
Section 2.2. Transferred Certegy Assets...................................................... 7
Section 2.3. Assumption of Liabilities....................................................... 8
Section 2.4. Completion of Transactions...................................................... 8
ARTICLE III THIRD PARTY AGREEMENTS.................................................................. 9
Section 3.1. Third Party Agreements.......................................................... 9
Section 3.2. Required Consents............................................................... 10
Section 3.3. Discharge of Liabilities........................................................ 11
ARTICLE IV LICENSED MATERIALS....................................................................... 11
Section 4.1. Grant of Licenses by Equifax.................................................... 11
Section 4.2. Ownership of Enhancements by Certegy............................................ 14
Section 4.3. License to Marks................................................................ 14
Section 4.4. Grant of License by Certegy..................................................... 15
Section 4.5. Ownership of Enhancements by Equifax............................................ 17
Section 4.6. Data............................................................................ 18
Section 4.7. Mutual Obligations.............................................................. 18
ARTICLE V THE CLOSING............................................................................... 20
Section 5.1. Equifax Deliverables............................................................ 20
Section 5.2. Certegy Deliverables............................................................ 20
ARTICLE VI REPRESENTATIONS AND WARRANTIES........................................................... 21
ARTICLE VII INDEMNIFICATION......................................................................... 21
Section 7.1. Certegy Indemnification of the Equifax Group.................................... 21
Section 7.2. Equifax Indemnification of the Certegy Group.................................... 22
Section 7.3. Insurance and Third Party Obligations........................................... 22
ARTICLE VIII INDEMNIFICATION PROCEDURES............................................................. 22
Section 8.1. Notice and Payment of Claims.................................................... 22
Section 8.2. Notice and Defense of Third Party Claims........................................ 22
ARTICLE IX CONFIDENTIALITY.......................................................................... 24
Section 9.1. Exclusions...................................................................... 24
Section 9.2. Confidentiality................................................................. 24
Section 9.3. Employee Confidentiality Agreements............................................. 25
1
Section 9.4. Rights and Remedies............................................................. 26
Section 9.5. Competitive Activities.......................................................... 26
Section 9.6. No Implied Rights............................................................... 26
ARTICLE X CONTINUED ASSISTANCE...................................................................... 27
Section 10.1. Continued Assistance and Transition............................................. 27
Section 10.2. Records and Documents........................................................... 27
Section 10.3. Litigation Cooperation.......................................................... 28
ARTICLE XI MISCELLANEOUS............................................................................ 28
Section 11.1. Expenses........................................................................ 28
Section 11.2. Notices......................................................................... 28
Section 11.3. Amendment and Waive..r.......................................................... 29
Section 11.4. Entire Agreement................................................................ 29
Section 11.5. Parties in Interest............................................................. 30
Section 11.6. Further Assurances and Co..nsents............................................... 30
Section 11.7. Severability.................................................................... 30
Section 11.8. Governing Law................................................................... 30
Section 11.9. Counterparts.................................................................... 30
Section 11.10. Disputes........................................................................ 31
Section 11.11. Force Majeure................................................................... 31
Section 11.12. Documentation................................................................... 31
Section 11.13. Headings........................................................................ 31
EXHIBIT A - CERTEGY GROUP
EXHIBIT B - TRANSFERRED EQUIFAX ASSETS
EXHIBIT C - EQUIFAX THIRD PARTY AGREEMENTS - TRANSFERS
EXHIBIT D - EQUIFAX THIRD PARTY AGREEMENTS - RIGHTS GRANTED
EXHIBIT E - TRANSFERRED CERTEGY ASSETS
EXHIBIT F - CERTEGY THIRD PARTY AGREEMENTS - TRANSFERS
EXHIBIT G - CERTEGY THIRD PARTY AGREEMENTS - RIGHTS GRANTED
EXHIBIT H - SPECIFIED EQUIFAX LIABILITIES
EXHIBIT I - SPECIFIED CERTEGY LIABILITIES
EXHIBIT J - LICENSED EQUIFAX MATERIALS
EXHIBIT K - LICENSED CERTEGY MATERIALS
EXHIBIT L - UTILITY SOFTWARE PROGRAMS
EXHIBIT M - OTHER IP ASSETS
EXHIBIT N - PROJECTED MIPS
2
EXHIBIT 99.5
INTELLECTUAL PROPERTY AGREEMENT
THIS INTELLECTUAL PROPERTY AGREEMENT ("Agreement"), dated as of June
30, 2001, is entered into by Equifax Inc., a Georgia corporation ("Equifax"),
and Certegy Inc., a Georgia corporation ("Certegy").
BACKGROUND
A. Certegy is a wholly owned subsidiary of Equifax formed among other
reasons for the purpose of taking title to the intellectual property assets and
assuming the associated liabilities related to the business operations of the
Certegy Group (as defined below).
B. The Board of Directors of Equifax has determined that it is in the
best interests of Equifax and its shareholders to transfer, assign and/or
license to, or acquire on behalf of, Certegy and Designated Certegy Members
(defined below), as part of the contribution to the capital of Certegy, certain
intellectual property assets used in the business operations of the Certegy
Group as described herein and currently utilized to operate the Certegy Business
(as defined below), and to receive in exchange therefor the consideration
described in the Distribution Agreement (as defined below).
C. The Board of Directors of Certegy has determined that it is in the
best interests of Certegy and its shareholders to transfer, assign and/or
license to, or acquire on behalf of, Equifax and Designated Equifax Members
(defined below) certain intellectual property assets.
D. The parties intend that the Distribution (as defined in the
Distribution Agreement) not be taxable to Equifax or its shareholders pursuant
to Section 355 of the Code (as defined below).
E. Equifax and its Affiliates (defined below) own certain intellectual
property that is used in, or may be useful in, the conduct of the business
operations of the Equifax Group (defined below) and/or the Certegy Group.
Equifax and Certegy have determined that subject to the terms herein: (1)
ownership of certain of such intellectual property shall be transferred to the
entity specified in this Agreement on or before the Distribution Date (defined
below); (2) certain intellectual property owned by Equifax and/or its Affiliates
shall be licensed to the entity(ies) specified in this Agreement on or before
the Distribution Date; and (3) the respective rights and obligations of Equifax
and/or its Affiliates under certain Third Party Agreements (defined below) shall
be acquired, assumed or otherwise transferred to the entity(ies) specified in
this Agreement, subject to the consent of the applicable Third Party Provider
(defined below).
F. The parties have determined that it is necessary and desirable to
describe the principal transactions required to effect the allocation of their
respective intellectual property rights in conjunction with the Distribution and
to set forth other agreements that will govern certain other matters regarding
the parties' respective intellectual property rights following the Distribution.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
agreements and covenants contained in this Agreement, and other valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions
As used herein, the following terms have the following meanings:
(a) "Action" means any claim, suit, arbitration, inquiry, proceeding
or investigation by or before any court, governmental or other regulatory or
administrative agency or commission or any other tribunal.
(b) "Affiliate" means, with respect to Equifax, any Person, which,
whether directly or indirectly, is Controlled by or is under common Control with
Equifax prior to the Distribution Date.
(c) "Certegy Business" means the businesses conducted by the members
of the Certegy Group as of the Distribution Date.
(d) "Certegy Continued Use Materials" means any and all IP Assets
(other than Transferred Assets) owned and/or held by a member of the Equifax
Group that satisfy each of the following criteria: (i) such IP Assets were used
in the Certegy Business during the twelve (12) calendar months prior to the
Distribution Date and for which a continuing business requirement exists on the
Distribution Date, and (ii) such IP Assets or the services, information or
deliverables produced with such IP Assets (A) are not made commercially
available by the Equifax Group to third parties on the Distribution Date, and
(B) are not made available to the Certegy Group after the Distribution Date
pursuant to the Intercompany Data Purchase Agreement or the Transition Support
Agreement.
(e) "Certegy Enhancements" means software and/or associated
documentation created by or for any member of the Certegy Group on or after the
Closing Date, that provides processing capabilities, functionality or
efficiencies, maintenance, bug fixes or updates not contained in the Transferred
Equifax Assets as of the Closing Date and which is intended for use with and
requires a portion of the Transferred Equifax Assets in order to function
properly.
(f) "Certegy Group" means the entities set forth on Exhibit A and any
of their respective subsidiaries.
2
(g) "Certegy Indemnitees" has the meaning given in Section 7.2.
(h) "Certegy Liabilities" means all unsatisfied Liabilities, whether
arising before, on or after the Distribution Date, based upon or arising out of
the ownership, use or possession by the Certegy Group of the Transferred Equifax
Assets, the Licensed Equifax Materials or the Equifax Marks.
(i) "Certegy Third Party Use Rights" means the rights granted to or
secured for Equifax or one or more Designated Equifax Members pursuant to
Section 3.1(b)(ii).
(j) "Closing Date" means the Effective Time, as defined in the
Distribution Agreement.
(k) "Code" means the Internal Revenue Code of 1986, as amended.
(l) "Company Information" means collectively the Proprietary
Information and the Confidential Information of the disclosing party. Company
Information also includes information that has been disclosed to Equifax or any
of its Affiliates prior to the Distribution Date, or to any member of either
Group after the Distribution Date, by a third party subject to an obligation to
treat such information as confidential or secret.
(m) "Confidential Information" means any and all confidential business
information of the disclosing party that does not constitute Proprietary
Information and that is the subject of efforts by the disclosing party that are
reasonable under the circumstances to maintain its secrecy and confidentiality,
including without limitation, the existence and nature of the relationship
between the parties, employees of the disclosing party, and any and all
additional information disclosed by the disclosing party to the receiving party
as a result of the receiving party's access to and presence at the disclosing
party's facilities.
(n) "Control" means the ownership, directly or indirectly, of more
than fifty percent (50%) of the voting shares of an entity, or other possession,
directly or indirectly, of the power to direct or cause the direction of the
management and policies of an entity, or the power to veto major policy
decisions of any such entity, whether through the ownership of voting securities
by contract, or otherwise.
(o) "Derivative Work" means a work based on one or more pre-existing
works, including without limitation, a condensation, transformation, expansion
or adaptation, that would constitute a copyright infringement if prepared
without authorization of the owner of the copyright of such pre-existing work.
(p) "Designated Certegy Member" means a member of the Certegy Group,
as designated by Certegy in its sole discretion.
(q) "Designated Equifax Member" means a member of the Equifax Group,
as designated by Equifax in its sole discretion.
(r) "Disputes" has the meaning given in the Distribution Agreement.
3
(s) "Distribution Agreement" means that certain Distribution Agreement
entered into on or prior to the Distribution Date between Equifax and Certegy,
as amended from time to time.
(t) "Distribution Date" means the day as of which the Distribution
shall be effective, as determined by the Board of Directors of Equifax, or such
committee of such Board of Directors as shall be designated by the Board of
Directors of Equifax.
(u) "Divested Business" means the sale or other transfer of a member
of either Group, or a portion of the business operations of any such member, to
an unrelated third party after the Distribution Date.
(v) "Equifax Business" means the businesses now or formerly conducted
by Equifax and its present and former Affiliates, other than the Certegy
Business.
(w) "Equifax Continued Use Materials" means any and all IP Assets
(other than Transferred Assets) owned and/or held by a member of the Certegy
Group that satisfy each of the following criteria: (i) such IP Assets were used
in the Equifax Business during the twelve (12) calendar months prior to the
Distribution Date and for which a continuing business requirement exists on the
Distribution Date, and (ii) such IP Assets or the services, information or
deliverables produced with such IP Assets (A) are not made commercially
available by the Certegy Group to third parties on the Distribution Date, and
(B) are not made available to the Equifax Group after the Distribution Date
pursuant to the Intercompany Data Purchase Agreement or the Transition Support
Agreement.
(x) "Equifax Enhancements" means software and/or associated
documentation created by or for any member of the Equifax Group on or after the
Closing Date, that provides processing capabilities, functionality or
efficiencies, maintenance, bug fixes or updates not contained in the Transferred
Certegy Assets on the Closing Date and which is intended for use with and
requires a portion of the Transferred Certegy Assets in order to function
properly.
(y) "Equifax Group" means Equifax and its Affiliates existing on the
Distribution Date and as modified from time to time thereafter, excluding all
members of the Certegy Group.
(z) "Equifax Indemnitees" has the meaning given in Section 7.1.
(aa) "Equifax Liabilities" means all unsatisfied Liabilities, whether
arising before, on or after the Distribution Date, based upon or arising out of
the ownership, use or possession by the Equifax Group of the Transferred Certegy
Assets or the Licensed Certegy Materials.
(bb) "Equifax Marks" mean the Marks owned by Equifax or its
Affiliates.
(cc) "Equifax Third Party Use Rights" means the rights granted to or
secured for Certegy or one or more Designated Certegy Members pursuant to
Section 3.1(a)(ii).
(dd) "Group" means the Certegy Group and/or the Equifax Group.
(ee) "Indemnifiable Losses" has the meaning given in Section 7.1.
4
(ff) "Indemnified Party" has the meaning given in Section 8.1.
(gg) "Indemnifying Party" has the meaning given in Section 8.1.
(hh) "Intercompany Data Purchase Agreement" means that certain
Intercompany Data Purchase Agreement entered into on or prior to the
Distribution Date between Equifax and Certegy, as amended from time to time.
(ii) "IP Assets" means all intellectual property rights in and to any
ideas, trade secrets, specifications, designs, masks, mask works, copyrights,
patents, Marks and other proprietary rights, of every kind and description,
wherever located, including without limitation, all electronic circuit designs,
works of authorship, databases, compositions of matter, computer software
(whether such computer software constitutes custom software, firmware or systems
created by, or for the exclusive use of either party, or otherwise), algorithms,
and works of authorship expressing such algorithms.
(jj) "Liabilities" means any and all claims, debts, liabilities and
obligations, absolute or contingent, matured or not matured, liquidated or
unliquidated, accrued or unaccrued, known or unknown, whenever arising, with
respect to a specified object, matter, contract, commitment or undertaking,
including without limitation, all claims, debts, liabilities and obligations
arising under any law, rule, regulation, action, order or consent decree of any
governmental entity or any award of any arbitrator of any kind, related thereto
or arising under any contract, commitment or undertaking relating to such
specified object, matter, contract, commitment or undertaking.
(kk) "Licensed Certegy Materials" means those IP Assets identified on
Exhibit K and the Equifax Continued Use Materials.
(ll) "Licensed Equifax Materials" means those IP Assets identified on
Exhibit J and the Certegy Continued Use Materials.
(mm) "Licensed Materials" means the Licensed Certegy Materials and/or
Licensed Equifax Materials.
(nn) "Marks" means trademarks, service marks, domain names,
tradenames, and other slogans, designs and distinctive advertising, whether or
not registered or filed with any governmental agency.
(oo) "Person" means an individual, partnership, joint venture,
association, corporation, limited liability company, trust or any other legal
entity.
(pp) "Proprietary Information" means all non-public information
whether tangible or intangible related to the services or business of the
disclosing party that (i) derives economic value, actual or potential, from not
being generally known to or readily ascertainable by another Person who can
obtain economic value from its disclosure or use; and (ii) is the subject of
efforts by the disclosing party that are reasonable under the circumstances to
maintain its secrecy, including without limitation, (A) marking any information
reduced to tangible form clearly and conspicuously with a legend identifying its
confidential or proprietary nature; (B) identifying any
5
oral communication as confidential immediately before, during, or after such
oral communication; or (C) otherwise treating such information as confidential
or secret. Assuming the criteria in clauses (i) and (ii) above are met,
Proprietary Information includes information, without regard to form, including,
but not limited to, technical and nontechnical data, databases, formulas,
patterns, designs, compilations, computer programs and software, devices,
inventions, methods, techniques, drawings, processes, financial data, financial
plans, product plans, lists of actual or potential customers and suppliers
(which are not commonly known by or available to the public), research,
development, and existing and future products.
(qq) "Related Agreements" means all of the written agreements,
instruments, understandings, assignments or other arrangements entered into in
connection with the transactions contemplated hereby (other than this
Agreement), including without limitation, the Distribution Agreement,
Intercompany Data Purchase Agreement and Transition Support Agreement.
(rr) "Representatives" means, individually and collectively, officers,
directors, employees, agents, and/or independent contractors of each member of
the Group.
(ss) "Required Consents" means any consents or approvals required to
be obtained (i) to allow the transfer of any assets to and the assumption of the
obligations attendant therewith by a party and release of the transferring party
from such obligations; (ii) to allow a party to assume financial, support,
operational, management and/or administrative responsibility for the Third Party
Rights utilized in the operation of the Equifax Business or Certegy Business,
respectively; (iii) for the licensing, acquiring, transfer and/or grant of the
rights to the Equifax Group or Certegy Group, respectively, to use the Third
Party Rights as contemplated by this Agreement; and/or (iv) for a party to have
access to and use of the space, equipment, software and/or third party services
provided under the Third Party Agreements entered into by the other party as
contemplated by this Agreement.
(tt) "Third Party Agreements" means agreements, contracts or
arrangements between Equifax and/or its Affiliates, on the one hand, and a Third
Party Provider, on the other.
(uu) "Third Party Claim" has the meaning given in Section 8.2.
(vv) "Third Party Provider" means a Person other than a member of
either Group that provides products, software, services, maintenance and/or
support to Equifax or one or more of its Affiliates.
(ww) "Third Party Rights" means rights granted to Equifax and/or its
Affiliates pursuant to a Third Party Agreement, including (i) all service,
support and maintenance rights related thereto or attendant therewith, and (ii)
all contractual rights, commitments, undertakings and obligations (including
service, data processing, support and maintenance rights and obligations)
attendant therewith or directly related thereto.
(xx) "Third Party Use Rights" means the respective Equifax Third Party
Use Rights and Certegy Third Party Use Rights.
6
(yy) "Transferred Assets" means the Transferred Equifax Assets and
Transferred Certegy Assets.
(zz) "Transferred Equifax Assets" means the assets to be acquired on
behalf of, or transferred to, Certegy or one or more Designated Certegy Members
as described in Section 2.1.
(aaa) "Transferred Equifax Third Party Agreements" means the Third
Party Agreements, the rights and obligations of which are to be acquired on
behalf of, or transferred to, Certegy or one or more Designated Certegy Members
pursuant to Section 3.1(a)(i).
(bbb) "Transferred Certegy Assets" means the assets to be acquired on
behalf of, or transferred to, Equifax or the one or more Designated Equifax
Members as described in Section 2.2.
(ccc) "Transferred Certegy Third Party Agreements" means the Third
Party Agreements, the rights and obligations of which are to be acquired on
behalf of, or transferred to, Equifax or one or more Designated Equifax Members
pursuant to Section 3.1(b)(i).
(ddd) "Transferred Third Party Agreements" means the respective
Transferred Equifax Third Party Agreements and/or the Certegy Transferred Third
Party Agreements.
(eee) "Transition Support Agreement" means that certain Transition
Support Agreement entered into on or prior to the Distribution Date between
Equifax and Certegy, as amended from time to time.
(fff) "Utility Software Programs" means the software programs set
forth on Exhibit L.
ARTICLE II
CONVEYANCE OF CERTAIN ASSETS; ASSUMPTION OF CERTAIN LIABILITIES
Section 2.1. Transferred Equifax Assets.
Effective as of the Closing Date, and subject to Sections 2.3 and 2.4
and Article III hereof, Equifax agrees, at its expense, to transfer, or cause to
be transferred, to Certegy or to a Designated Certegy Member all right, title
and interest held by Equifax and/or its Affiliates as of the Closing Date in and
to each of the assets identified on Exhibit B hereto, subject to the retained
rights described therein. Except as set forth on Exhibit B, no other assets
(other than Transferred Equifax Third Party Agreements) are being transferred by
Equifax (or a member of the Equifax Group) pursuant to this Agreement.
Section 2.2. Transferred Certegy Assets.
Effective as of the Closing Date, and subject to Sections 2.3 and 2.4
and Article III hereof, Certegy agrees to transfer, or cause to be transferred,
to Equifax or to a Designated Equifax Member all right, title and interest held
by the members of the Certegy Group as of the Closing Date in and to each of the
assets identified on Exhibit E, subject to the retained rights
7
described therein. Except as set forth on Exhibit E, no other assets (other than
Transferred Certegy Third Party Agreements) are being transferred by Certegy (or
a member of the Certegy Group) pursuant to this Agreement. The expenses payable
to third parties that are not members of either Group to effect such transfers
shall be the financial responsibility of Equifax.
Section 2.3. Assumption of Liabilities.
(a) As of the Closing Date, Equifax shall, or shall cause the
respective Designated Equifax Member to, assume all payment and performance
obligations attendant with the Transferred Certegy Assets and the Equifax
Liabilities, including, without limitation, the Liabilities identified on
Exhibit H.
(b) As of the Closing Date, Certegy shall, or shall cause the
respective Designated Certegy Member to, assume all payment and performance
obligations attendant with the Transferred Equifax Assets and the Certegy
Liabilities, including, without limitation, the Liabilities identified on
Exhibit I.
Section 2.4. Completion of Transactions.
(a) In the event that any conveyance of a Transferred Asset,
Transferred Third Party Agreement, or the provision of a Third Party Right or
Third Party Use Right, or assumption of any Liability, required by this
Agreement is not effected on or before the Closing Date, the obligation to
transfer such Transferred Asset or Transferred Third Party Agreement, provide
such Third Party Right or Third Party Use Right, and assume such Liability shall
continue past the Closing Date and shall be effected by the parties as soon
thereafter as practicable; provided, however, that neither party shall be
obligated under this paragraph to transfer any Transferred Third Party Agreement
and/or provide Third Party Use Rights that either (i) did not exist as of the
Closing Date or (ii) are no longer required by the party who is the intended
transferee of the respective Third Party Agreement or is entitled to receive the
Third Party Use Rights for the continued operation of such party's business.
(b) If any Transferred Asset or Transferred Third Party Agreement may
not be transferred or acquired by reason of a requirement to obtain a Required
Consent or any other approval of any third party and such Required Consent or
other approval has not been obtained by the Closing Date, then such Transferred
Asset or Transferred Third Party Agreement shall not be transferred or acquired
until such Required Consent or other approval has been obtained. Equifax and
Certegy shall, and as the case may be, shall cause the member of its respective
Group which is the holder of such Transferred Asset or Transferred Third Party
Agreement prior to transfer, to use all reasonable efforts to provide to the
applicable member of the other Group all the rights and benefits under such
Transferred Asset or Transferred Third Party Agreement and to cause such holder
to enforce such Transferred Asset or Transferred Third Party Agreement for the
benefit of such member of the other Group; provided, however, that the foregoing
obligation shall not, in any way, require Equifax, Certegy or any member of a
respective Group to breach any Transferred Third Party Agreement or incur or
suffer any liability with respect to any Transferred Third Party Agreement.
Moreover, if any transfer of a Transferred Asset or Transferred Third Party
Agreement or provision of a Third Party Right or Third Party Use Right, is not
completed by the Closing Date in accordance with this Agreement for any reason,
each of
8
Equifax and Certegy shall, and shall cause the members of its Group to,
cooperate in achieving a reasonable alternative arrangement for the affected
members of the Groups to obtain the economic and operational equivalent of the
intended transfer of such Transferred Asset or Third Party Agreement and/or
provision of such Third Party Right or Third Party Use Right, and assumption of
the attendant Liabilities, with minimum interference to such members' business
operations until such transfer of such Transferred Asset or Third Party
Agreement, and/or provision of such Third Party Right or Third Party Use Right,
is completed. The costs payable to third parties that are not members of either
Group to achieve any such reasonable alternative arrangement shall be the
financial responsibility of Equifax.
(c) From time to time on and after the Closing Date, each party shall
promptly transfer, and cause the appropriate members of its Group promptly to
transfer, to the other party, or the designated member of the other party's
Group, any property and other benefits received by such party, or the members of
its Group, that are intended to be or are a Transferred Asset or Transferred
Third Party Agreement of the other party under this Agreement. Without limiting
the foregoing, funds received by a member of either Group that belong to a
member of the other Group (whether by payment of accounts receivable, credits,
rebates or other amounts, however described) shall be delivered to the other
Group by wire transfer not more than five (5) business days after receipt of
such payment.
ARTICLE III
THIRD PARTY AGREEMENTS
Section 3.1. Third Party Agreements.
(a) Effective as of the Closing Date, Equifax shall (i) transfer, or
cause to be transferred, to Certegy or a Designated Certegy Member, or acquire
on Certegy's behalf, the rights and obligations of Equifax and its Affiliates in
and to the Third Party Agreements identified on Exhibit C (including all Third
Party Rights related thereto) and (ii) grant rights to or secure rights
(including rights as an "authorized user") for Certegy or a Designated Certegy
Member under the Third Party Agreements identified on Exhibit D, in each case,
subject to the respective payment obligations or other terms set forth on
Exhibit C and Exhibit D.
(b) Effective as of the Closing Date, Certegy shall (i) transfer, or
cause to be transferred, to Equifax or a Designated Equifax Member, or acquire
on Equifax's behalf, the rights and obligations of the members of the Certegy
Group in and to the Third Party Agreements identified on Exhibit F (including
all Third Party Rights related thereto) and (ii) grants rights to or secure
rights (including rights as an "authorized user") for Equifax or a Designated
Equifax Member under the Third Party Agreements identified on Exhibit G, in each
case, subject to the respective payment obligations or other terms set forth on
Exhibit F and Exhibit G.
(c) Unless as expressly provided hereunder, neither party shall have
any obligation to transfer, have transferred or acquire any Third Party Rights
or Third Party Use Rights for or on behalf of the other party.
9
(d) Without limiting each party's specific obligations pursuant hereto
(or in any separate agreement) with respect to Third Party Rights and Third
Party Use Rights, each of Certegy and Equifax agrees to, in connection with its
use of, exploitation of and performance pursuant to any Third Party Rights or
Third Party Use Rights, including, without limitation, such party's rights to
use, copy, exploit, distribute, display, copy and sublicense any software
secured for or granted to such party pursuant to such Third Party Rights or
Third Party Use Rights, comply with the terms, scope, restrictions and
provisions (including, without limitation, usage limitations) of any Third Party
Rights or Third Party Agreements that govern such Third Party Rights or Third
Party Use Rights. A failure to comply with this paragraph shall constitute a
breach of this Agreement.
Section 3.2. Required Consents.
(a) Equifax with respect to Transferred Equifax Third Party Agreements
and Equifax Third Party Use Rights, and Certegy with respect to Transferred
Certegy Third Party Agreements and Certegy Third Party Use Rights, shall, or
shall cause the appropriate member of its respective Group to, use its
reasonable commercial efforts to obtain the grant to the applicable member of
the other Group, the Required Consents from the Third Party Providers under such
respective Third Party Agreements as necessary to effect the provisions of this
Agreement. Each party will provide the other party with advice on its experience
and agreements with the Third Party Providers with regard to obtaining any
Required Consent under such Third Party Agreements. Equifax and Certegy will
each have management and administrative responsibilities for obtaining all
Required Consents required as of the Closing Date to which a member of its
respective Group is a party. Equifax shall have the right of prior approval of
the terms upon which all Required Consents are obtained.
(b) Except as otherwise provided in Section 3.1 and the exhibits
referenced therein, Equifax shall bear the costs payable to third parties that
are not members of either Group, if any, of obtaining all Required Consents,
including without limitation, all charges and fees related to obtaining the
Required Consents for the Transferred Third Party Agreements and Third Party Use
Rights.
(c) Equifax and Certegy shall use reasonable commercial efforts to
obtain all Required Consents with regard to Transferred Third Party Agreements
and Third Party Use Rights within one hundred eighty (180) days after the
Closing Date, unless otherwise agreed by the parties in writing. Until all
Required Consents are obtained, Equifax and Certegy shall each periodically
publish a list setting forth the status of each Required Consent for which a
member of its respective Group is the contracting party immediately prior to the
Closing Date. Equifax and Certegy shall timely cooperate with each other in
order to facilitate the proper and timely publication of such periodic Required
Consents list. If any Required Consent is not obtained with respect to any of
the Third Party Agreements or Third Party Use Rights, the parties shall
cooperate with each other in achieving a reasonable alternative arrangement for
the affected Group to continue to process its work with minimum interference to
its business operations until such Required Consents are obtained, including
without limitation, implementing the provisions of Section 2.4(b). Except as
otherwise provided in Section 3.1 and the exhibits referenced therein, the cost
payable to third parties that are not members of either Group of achieving such
10
reasonable alternative arrangements with respect to Third Party Rights that are
a part of the Transferred Assets or Transferred Third Party Agreements shall be
borne by Equifax.
(d) The financial obligations of Equifax under Sections 3.2(b) and (c) for
Required Consents and alternative arrangements, shall terminate with respect to
all such Required Consents and alternative arrangements not identified by the
parties to each other in a writing within twelve (12) months after the Closing
Date, and for all Required Consents and alternative arrangements identified
thereafter, all such financial obligations shall be borne by the party needing
the Required Consent or alternative arrangement to operate under or take
assignment of the Third Party Agreement or to obtain such Third Party Right for
which such Required Consent or alternative arrangement is required.
(e) For all periods after the Closing Date, except as set forth in
Sections 3.2(b) and 3.2(c) for Required Consents and alternative arrangements,
Equifax and Certegy shall each bear financial responsibility and pay the Third
Party Providers, under all Transferred Third Party Agreements transferred to its
respective Group pursuant to Sections 3.1(a)(i) and 3.1(b)(i) above.
Section 3.3. Discharge of Liabilities.
(a) Certegy agrees that on and after the Closing Date it will timely pay,
perform and discharge, or cause to be timely paid, performed and discharged, all
of the Certegy Liabilities.
(b) Equifax agrees that on and after the Closing Date it will timely pay,
perform and discharge, or cause to be timely paid, performed and discharged, all
of the Equifax Liabilities.
ARTICLE IV
LICENSED MATERIALS
Section 4.1. Grant of Licenses by Equifax.
(a) Equifax hereby grants, and will cause the other members of the Equifax
Group to grant, to Certegy a fully paid, non-exclusive, perpetual, worldwide,
non-transferable license to use, modify, copy, improve, create Derivative Works
and Certegy Enhancements from, and sublicense the Licensed Equifax Materials
(excluding the Utility Software Programs) solely for use in the Certegy Business
and as that business may evolve and change in the future, subject to the
following:
(i) Certegy shall not sublicense, or otherwise disclose or
distribute, or permit any Person to use, the Licensed
Equifax Materials (excluding the Utility Software
Programs), except in accordance with Section 4.1(b);
(ii) Certegy shall hold the Licensed Equifax Materials
(excluding the Utility Software Programs) in strict
confidence; will not remove or destroy any proprietary
markings of the Equifax Group on or contained in the
Licensed Equifax Materials (excluding the Utility
11
Software Programs); and will include the copyright and
patent notices of the licensor as specified from time
to time by the licensor for the Licensed Equifax
Materials (excluding the Utility Software Programs) on
and in all copies of the Licensed Equifax Materials
(excluding the Utility Software Programs);
(iii) Certegy shall not export or re-export the Licensed
Equifax Materials (excluding the Utility Software
Programs) without the appropriate United States or
foreign government licenses; and
(iv) all sublicenses from Certegy to members of the Certegy
Group (A) shall contain the rights and restrictions
set forth in this Section 4.1(a) with respect to the
license granted to Certegy and comply with Sections
4.1(b) through (d) hereof and (B) shall be diligently
enforced by Certegy.
(b) The sublicense rights granted to Certegy pursuant to Section 4.1(a)
include the right for Certegy to grant sublicenses to the Licensed Equifax
Materials (excluding the Utility Software Programs) to the members of the
Certegy Group, which sublicenses may include the right to further sublicense
such Licensed Equifax Materials (excluding the Utility Software Programs) to
such Group member's customers solely for each such customer's internal business
purposes to the extent related to the Certegy Business. All sublicensing by
Certegy and other members of the Certegy Group to any one of their customers
shall be pursuant to written agreements with such customer, executed before or
at the time of furnishing each copy of the Licensed Equifax Materials (excluding
the Utility Software Programs) to such customer, and which provide at a minimum
that such customer:
(i) receives only a personal, non-transferable and
nonexclusive right to use such copy of the Licensed
Equifax Materials (excluding the Utility Software
Programs);
(ii) receives no title in the intellectual property
contained in the Licensed Equifax Materials (excluding
the Utility Software Programs);
(iii) will not copy the Licensed Equifax Materials
(excluding the Utility Software Programs), except as
necessary to use such Licensed Equifax Materials
(excluding the Utility Software Programs) in
accordance with the license grant and to make one
archival copy;
(iv) will not export or re-export the Licensed Equifax
Materials (excluding the Utility Software Programs)
without the appropriate United States or foreign
government licenses;
(v) will hold the Licensed Equifax Materials (excluding
the Utility Software Programs) in confidence; will not
reverse compile or disassemble the Licensed Equifax
Materials (excluding the Utility
12
Software Programs); will not remove or destroy any
proprietary markings of the licensor on or contained
in the Licensed Equifax Materials (excluding the
Utility Software Programs), and will include the
copyright and patent notices of the licensor as
specified from time to time by the licensor for the
Licensed Equifax Materials (excluding the Utility
Software Programs) on and in all copies of the
Licensed Equifax Materials (excluding the Utility
Software Programs); and
(vi) will not sublicense, assign or otherwise transfer the
Licensed Equifax Materials (excluding the Utility
Software Programs) to any other Person.
(c) In the event any member of the Certegy Group sublicenses any portion
of the Licensed Equifax Materials (excluding the Utility Software Programs) to
any third party pursuant to Section 4.1(a) and (b) above, Certegy agrees to
ensure that such member shall diligently enforce the terms and conditions of all
sublicenses granted pursuant to this Section 4.1.
(d) In the event that Certegy, or another member of the Certegy Group,
shall enter into a Divested Business transaction with respect to the Certegy
Group, and the scope of permitted use or other terms applicable to the Licensed
Equifax Materials (excluding the Utility Software Programs) under the license or
sublicenses granted in this Section 4.1 are required to be modified to effect
such transaction, Equifax will, or will cause the sublicensor under the
applicable sublicense to, agree to such modifications to the extent (i) required
for the transaction to be effected and (ii) not materially detrimental to the
interests of the Equifax Group. Such modifications shall not be effective until
the Divested Business or the acquiror thereof, as required by Equifax, has
entered into a license agreement with the appropriate member of the Equifax
Group incorporating the terms of Section 4.1 and Section 4.2 and such other
terms as Equifax reasonably deems appropriate for the protection of its
interests in the Licensed Equifax Materials.
(e) Without limiting the foregoing, Equifax hereby grants, and will cause
the other members of the Equifax Group to grant, to Certegy a fully paid, non-
exclusive, perpetual, worldwide, transferable license to use, modify, improve,
create Derivative Works from, and sublicense, the Utility Software Programs (in
both object and source code format) identified on Exhibit L as being owned by
Equifax or a member of the Equifax Group for any and all fields of use and to
any and all Persons.
(f) The Licensed Equifax Materials may be marketed under such name and in
such manner as Certegy chooses, consistent with the terms and conditions of this
Agreement.
(g) Except for the Certegy Group's rights described in Section 4.1(a), (b)
and (e) above, the Equifax Group's rights in and to the Licensed Equifax
Materials shall be and remain the exclusive property of Equifax or the members
of the Equifax Group, and their respective successors and assigns.
13
Section 4.2. Ownership of Enhancements by Certegy.
(a) Unless Exhibit J provides otherwise, Certegy, or the respective
Designated Certegy Member, shall own all the modifications and improvements to,
and the Certegy Enhancements and/or Derivative Works made from, the Licensed
Equifax Materials developed by any member of the Certegy Group, or by any party
other than a member of the Equifax Group at the expense of the Certegy Group.
Equifax hereby assigns, and shall cause each member of the Equifax Group to
assign, to Certegy, or the respective Designated Certegy Member, all right,
title and interest it may hold in and to such modifications, improvements,
Certegy Enhancements and Derivative Works. Certegy shall, or shall cause the
respective Designated Certegy Member to, have the right to make and file all
applications and other documents required to register the copyright(s) and file
for patents for such modifications, improvements, Certegy Enhancements and
Derivative Works in its discretion and at its sole cost and expense.
(b) Should Certegy elect to file any application for the registration,
perfection or protection of any modifications, improvements, Certegy
Enhancements or Derivative Works described in Section 4.2(a), under any
copyright, patent or other law of any country or jurisdiction, Equifax will, at
the request and expense of Certegy, do all things and sign all documents or
instruments reasonably necessary in the opinion of Certegy to assist in the
registration of such claims, file such applications, and obtain, defend and
enforce such copyright, patent, mask work and other rights.
(c) Subject to the license rights granted in Section 4.1, as between the
parties. the Licensed Equifax Materials shall be and shall remain the sole and
exclusive property of the Equifax Group and the members of the Equifax Group may
make any internal use and may commercially exploit any enhancements to the
Licensed Materials made or caused to be made by members of the Equifax Group, as
they shall deem appropriate without any obligation to any member of the Certegy
Group or other restriction. The Equifax Group may in particular distribute and
manufacture, or cause to be manufactured or distributed by any third party, any
such enhancements and/or the Licensed Equifax Materials.
Section 4.3. License to Marks.
(a) Equifax hereby grants, and will cause each member of the Equifax Group
to grant, to Certegy and each member of the Certegy Group a fully paid, non-
exclusive, worldwide, non-transferable right to continue to use the Equifax
Marks employed in the Certegy Business, but only to the extent such Equifax
Marks were displayed by the Certegy Group prior to the Distribution Date (i) on
the Transferred Equifax Assets, (ii) on premises jointly occupied with Equifax,
and (iii) on letterhead, product and services documentation, invoices, software
programs, packaging and similar materials used by the members of the Certegy
Group, and such Equifax Marks are used in accordance with the guidelines for
usage of the Equifax Marks published and amended by Equifax from time to time.
Certegy will terminate the use of such Equifax Marks as soon as commercially
practical but in any event within twelve (12) months after the Closing Date.
(b) Certegy hereby grants, and will cause each member of the Certegy Group
to grant, to Equifax and each member of the Equifax Group a fully paid, non-
exclusive, worldwide, non-
14
transferable right to continue to use the Marks that were owned immediately
prior to the Distribution Date by a member of the Certegy Group and employed in
the Equifax Business, but only to the extent such Marks were displayed by the
Equifax Group prior to the Distribution Date (i) on assets owned by Equifax or
any member of the Equifax Group (other than the Transferred Assets), (ii) on
premises jointly occupied with one or more members of the Certegy Group, and
(iii) on letterhead, product and services documentation, invoices, software
programs, packaging and similar materials used by the members of the Equifax
Group, and such Marks are used in accordance with the same guidelines for usage
as the Equifax Marks as described in subsection (a) above. Equifax will
terminate the use of such Marks as soon as commercially practical but in any
event within twelve (12) months after the Distribution Date.
Section 4.4. Grant of License by Certegy.
(a) Certegy hereby grants, and will cause the other members of the Certegy
Group to grant, to Equifax a fully paid, non-exclusive, perpetual, worldwide,
non-transferable license to use, modify, copy, improve, create Derivative Works
and Equifax Enhancements from, and sublicense the Licensed Certegy Materials
(excluding the Utility Software Programs) solely for use in the Equifax Business
and as that business may evolve and change in the future, subject to the
following:
(i) Equifax shall not sublicense, or otherwise disclose or
distribute, or permit any Person to use, the Licensed
Certegy Materials (excluding the Utility Software
Programs), except in accordance with Section 4.4(b);
(ii) Equifax shall hold the Licensed Certegy Materials
(excluding the Utility Software Programs) in strict
confidence; will not remove or destroy any proprietary
markings of the Certegy Group on or contained in the
Licensed Certegy Materials (excluding the Utility
Software Programs); and will include the copyright and
patent notices of the licensor as specified from time
to time by the licensor for the Licensed Certegy
Materials (excluding the Utility Software Programs) on
and in all copies of the Licensed Certegy Materials
(excluding the Utility Software Programs);
(iii) Equifax shall not export or re-export the Licensed
Certegy Materials (excluding the Utility Software
Programs) without the appropriate United States or
foreign government license; and
(iv) all sublicenses from Equifax to members of the Equifax
Group (A) shall contain the rights and restrictions
set forth in this Section 4.4(a) with respect to the
license granted to Equifax and comply with Sections
4.4(b) through (d) hereof and (B) shall be diligently
enforced by Equifax.
(b) The sublicense rights granted to Equifax pursuant to Section 4.4(a)
include the right for Equifax to grant sublicenses to the Licensed Certegy
Materials (excluding the Utility
15
Software Programs) to the members of the Equifax Group, which sublicenses may
include the right to further sublicense such Licensed Certegy Materials
(excluding the Utility Software Programs) to such Group member's customers
solely for each such customer's internal business purposes to the extent related
to the Equifax Business. All sublicensing by Equifax and other members of the
Equifax Group to any one of their customers shall be pursuant to written
agreements with such customer, executed before or at the time of furnishing each
copy of the Licensed Certegy Materials (excluding the Utility Software Programs)
to such customer, and which provide at a minimum that such customer:
(i) receives only a personal, non-transferable and
nonexclusive right to use such copy of the Licensed
Certegy Materials (excluding the Utility Software
Programs);
(ii) receives no title in the intellectual property
contained in the Licensed Certegy Materials (excluding
the Utility Software Programs);
(iii) will not copy the Licensed Certegy Materials
(excluding the Utility Software Programs), except as
necessary to use such Licensed Certegy Materials
(excluding the Utility Software Programs) in
accordance with the license grant and to make one
archival copy;
(iv) will not export or re-export the Licensed Certegy
Materials (excluding the Utility Software Programs)
without the appropriate United States or foreign
government licenses;
(v) will hold the Licensed Certegy Materials (excluding
the Utility Software Programs) in confidence; will not
reverse compile or disassemble the Licensed Certegy
Materials (excluding the Utility Software Programs);
will not remove or destroy any proprietary markings of
the licensor on or contained in the Licensed Certegy
Materials (excluding the Utility Software Programs);
and will include the copyright and patent notices of
the licensor as specified from time to time by the
licensor for the Licensed Certegy Materials (excluding
the Utility Software Programs) on and in all copies of
the Licensed Certegy Materials (excluding the Utility
Software Programs); and
(vi) will not sublicense, assign or otherwise transfer the
Licensed Certegy Materials (excluding the Utility
Software Programs) to any other Person.
(c) In the event any member of the Equifax Group sublicenses any portion
of the Licensed Certegy Materials (excluding the Utility Software Programs) to
any third party pursuant to Section 4.4(a) and (b) above, Equifax agrees to
ensure that such member shall diligently enforce the terms and conditions of all
sublicenses granted pursuant to this Section 4.4.
16
(d) In the event that Equifax, or another member of the Equifax Group,
shall enter into a Divested Business transaction with respect to the Equifax
Group, and the scope of permitted use or other terms applicable to the Licensed
Certegy Materials (excluding the Utility Software Programs) under the license or
sublicenses granted in this Section 4.4 are required to be modified to effect
such transaction, Certegy will, or will cause the sublicensor under the
applicable sublicense to, agree to such modifications to the extent (i) required
for the transaction to be effected and (ii) not materially detrimental to the
interests of the Certegy Group. Such modifications shall not be effective until
the Divested Business or the acquiror thereof, as required by Certegy, has
entered into a license agreement with the appropriate member of the Certegy
Group incorporating the terms of Section 4.4 and Section 4.5 and such other
terms as Certegy reasonably deems appropriate for the protection of its
interests in the Licensed Certegy Materials.
(e) Without limiting the foregoing, Certegy hereby grants, and will cause
the other members of the Certegy Group to grant, to Equifax a fully paid, non-
exclusive, perpetual, worldwide, transferable license to use, modify, improve,
create Derivative Works from, and sublicense, the Utility Software Programs (in
both object and source code format) identified on Exhibit L as being owned by
Certegy or a member of the Certegy Group for any and all fields of use and to
any and all Persons.
(f) The Licensed Certegy Materials may be marketed under such name and in
such manner as Equifax chooses, consistent with the terms and conditions of this
Agreement.
(g) Except for the Equifax Group's rights described in Section 4.4(a), (b)
and (e) above, the Certegy Group's rights in and to the Licensed Certegy
Materials shall be and remain the exclusive property of Certegy or the
respective Designated Certegy Member.
Section 4.5. Ownership of Enhancements by Equifax.
(a) Unless Exhibit K provides otherwise, Equifax, or the respective
Designated Equifax Member, shall own all the modifications and improvements to,
and the Equifax Enhancements and/or Derivative Works made from, the Licensed
Certegy Materials developed by any member of the Equifax Group, or by any party
other than a member of the Certegy Group at the expense of the Equifax Group.
Certegy hereby assigns, and shall cause each member of the Certegy Group to
assign, to Equifax, or the respective Designated Equifax Member, all right,
title and interest it may hold in and to such modifications, improvements,
Equifax Enhancements and Derivative Works. Equifax shall, or shall cause the
respective Designated Equifax Member to, have the right to make and file all
applications and other documents required to register the copyright(s) and file
for patents for such modifications, improvements, Equifax Enhancements and
Derivative Works in its discretion and at its sole cost and expense.
(b) Should Equifax elect to file any application for the registration,
perfection or protection of any modifications, improvements, Equifax
Enhancements or Derivative Works described in Section 4.5(a), under any
copyright, patent or other law of any country or jurisdiction, Certegy will, at
the request and expense of Equifax, do all things and sign all documents or
instruments reasonably necessary in the opinion of Equifax to assist in the
17
registration of such claims, file such applications, and obtain, defend and
enforce such copyright, patent, mask work and other rights.
(c) Subject to the license rights granted in Section 4.4, as between the
parties, the Licensed Certegy Materials shall be and shall remain the sole and
exclusive property of the Certegy Group and the members of the Certegy Group may
make any internal use and may commercially exploit any enhancements to the
Licensed Materials made or caused to be made by members of the Equifax Group, as
they shall deem appropriate without any obligation to any member of the Equifax
Group or other restriction. The Certegy Group may in particular distribute and
manufacture, or cause to be manufactured or distributed by any third party, any
such enhancements and/or Licensed Certegy Materials.
Section 4.6. Data.
In no event shall any member of either Group be deemed to have been granted
any rights under this Agreement in or to any data owned or maintained by any
other member of the other Group, except as specifically provided in Sections 2.1
or 2.2. The respective rights of the members of each Group in and to such data
shall be governed exclusively by Sections 2.1 or 2.2 and the Intercompany Data
Purchase Agreement.
Section 4.7. Mutual Obligations.
(a) The parties agree and acknowledge that, in addition to the rights
granted or to be granted to the parties herein, certain other rights to software
source code, object code and documentation, and trademarks and service marks
related thereto, are described on Exhibit M.
(b) The parties acknowledge and agree that as of the Closing Date, the UK
mainframe environment, consisting of mainframe computer hardware ("Mainframe
Hardware") and certain third party software ("OEM Software"), currently consists
of three (3) logical partitions ("LPARs"), two (2) of which are shared between
Equifax and Certegy. The parties acknowledge and agree that certain OEM Software
("MIPS-Based Software") being used on the Mainframe Hardware contains
limitations based upon the number of millions of instructions per second
("MIPS") performed; other OEM Software ("CPU-Based Software") being used on the
Mainframe Hardware contains limitations based upon CPU group ratings. The
parties also acknowledge and agree that they have previously determined the
number of MIPS available, for each party, in excess of the current combined MIPS
usage, in connection with the MIPS-Based Software ("Projected MIPS"), and in
connection with the CPU-Based Software ("Overhead MIPS"), both as set forth on
Exhibit N. With respect to the foregoing, the parties hereby agree as follows:
(i) Certegy agrees that it shall, no later than March 31,
2002, establish, or cause to be established, one or more new and separate
LPAR(s) and that Certegy shall no longer share any LPAR with Equifax. Certegy
shall be responsible for paying any and all additional software license fees,
service fees, fees related to hardware, or other similar fees incurred to
establish the new LPAR(s) and to migrate from the existing to the new LPAR(s).
Notwithstanding anything contained herein to the contrary, if the deadline for
LPAR separation is not met by Certegy prior to March 31, 2002, any costs or
fees, including all fees, costs or expenses incurred as a result of
18
increased capacity or speed requirements or otherwise, incurred by either party
due to the non-separation shall be borne by Certegy.
(ii) If either party, prior to or at the time of the complete
separation of LPARs (described in subsection (i) above), exceeds its respective
Projected MIPS for any year, and, thereafter, any of the MIPS-Based Software is
required, under the terms of the respective software licenses, to be upgraded to
allow usage of the additional MIPS, the party first exceeding its respective
Projected MIPS ("Triggering Party") shall bear the full cost and expense of
upgrading the MIPS-Based Software licenses (whether or not such party ultimately
caused the MIPS limitations to be exceeded). Notwithstanding the foregoing, at
any time after an upgrade to a MIPS-Based Software license is purchased, if the
non-Triggering Party exceeds its Projected MIPS during a respective year, such
non-Triggering Party shall pay the Triggering Party an amount equal to the total
cost to the Triggering Party of purchasing the upgrade multiplied by a fraction,
the numerator of which is the number of MIPS used by the non-Triggering Party
that exceeds its original Projected MIPS, and the denominator of which is the
total number of MIPS permitted or allowable pursuant to the MIPS-Based Software
upgrade, but excluding the total number of MIPS permitted prior to the upgrade.
(iii) If either party, prior to or at the time of the complete
separation of LPARs (described in subsection (i) above), exceeds its respective
Overhead MIPS for any year, and, thereafter, the CPU-Based Software is required,
under the terms of the respective software licenses, to be upgraded to allow
usage of the additional MIPS, the party first exceeding its respective Overhead
MIPS ("CPU Triggering Party") shall bear the full cost and expense of upgrading
the CPU-Based Software licenses (whether or not such party ultimately caused the
MIPS limitations to be exceeded). Notwithstanding the foregoing, at any time
after an upgrade to a CPU-Based Software license is purchased, if the other
party ("non-CPU Triggering Party") exceeds its Overhead MIPS during a respective
year, such non-CPU Triggering Party shall pay the CPU Triggering Party an amount
equal to the total cost to the CPU Triggering Party of purchasing the upgrade
multiplied by a fraction, the numerator of which is the number of MIPS used by
the non-CPU Triggering Party that exceeds its original Overhead MIPS, and the
denominator of which is the total number of MIPS permitted or allowable pursuant
to the CPU-Based Software upgrade, but excluding the total number of MIPS
permitted prior to the upgrade.
(iv) The rules related to OEM Software upgrade requirements
described in subsections (ii) and (iii) above shall apply in the same manner,
before or after the completion of the LPAR separation, with respect to Mainframe
Hardware upgrade requirements.
(v) Notwithstanding the foregoing, Certegy shall cease the use of
any software or hardware that is shared between the parties no later than the
date which is two (2) years following the Closing Date.
(c) The parties acknowledge that the Licensed Materials are "intellectual
property" within the meaning of Section 101 of the Federal Bankruptcy Act and
shall be subject to Section 365(n) thereof, all as set forth in the Intellectual
Property Bankruptcy Protection Act, Public Law 100-506, 102 Stat. 2538.
19
(d) In full and complete payment of the licenses granted in this
Agreement, the parties have made the payment described in the Distribution
Agreement as set forth in the Distribution Agreement.
(e) Each party shall notify the other party of any involuntary attachment
or other judicial process affecting the Licensed Materials.
ARTICLE V
THE CLOSING
Section 5.1. Equifax Deliverables.
On or before the Distribution Date, and effective as of the Closing Date,
Equifax will, and/or will cause each member of the Equifax Group to, deliver to
Certegy each of the following:
(a) Duly executed assignment and assumption agreements necessary for the
assignment and transfer to, and the assumption by Certegy of, the Transferred
Equifax Assets and Transferred Equifax Third Party Agreements;
(b) Duly executed assignment and assumption agreements necessary for the
assignment and transfer to, and the assumption by Equifax of, the Equifax
Liabilities; and
(c) Such other agreements, leases, documents or instruments as the parties
may agree are necessary or desirable in order to achieve the purposes of this
Agreement.
Section 5.2. Certegy Deliverables.
On the Closing Date, Certegy will, and/or will cause each member of the
Certegy Group to, deliver to Equifax each of the following:
(a) Duly executed assignment and assumption agreements necessary for the
assignment and transfer to, and the assumption by Equifax of, the Transferred
Certegy Assets and the Transferred Certegy Third Party Agreements;
(b) Duly executed assignment and assumption agreements necessary for the
assignment and transfer to, and the assumption by Certegy of, the Certegy
Liabilities; and
(c) Such other agreements, documents or instruments as the parties may
agree are necessary or desirable in order to achieve the purposes of this
Agreement.
20
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Except as expressly set forth in this Agreement or any Related Agreement,
neither any member of the Equifax Group, nor any member of the Certegy Group,
has given or is giving any representation or warranty regarding the assets or
Liabilities retained, transferred, assumed or licensed as contemplated hereby or
thereby, including without limitation, (i) title to the assets, (ii) validity of
the Liabilities, (iii) any lien, claim or other encumbrance affecting the assets
or Liabilities, or (iv) the value of the assets and the amount of the
Liabilities. Except as may be expressly set forth in this Agreement or any
Related Agreement, all assets and Liabilities were, or are being, transferred,
assigned, licensed, assumed, or are being retained, on an "AS IS," "WHERE IS"
basis and the respective transferees, licensees and assignees will bear the
economic and legal risks that any such conveyance (x) shall prove to be
insufficient to vest in the transferee a title that is free and clear of any
lien, claim or other encumbrance, or (y) shall not constitute an infringement of
a third party's rights.
ARTICLE VII
INDEMNIFICATION
Section 7.1. Certegy Indemnification of the Equifax Group.
If the Distribution occurs, on and after the Distribution Date, Certegy
shall indemnify, defend and hold harmless each member of the Equifax Group, and
each of their respective directors, officers, employees and agents (collectively
the "Equifax Indemnitees") from and against any and all damage, loss, liability
and expense, (including without limitation, reasonable expenses of investigation
and reasonable attorneys' fees and expenses) in connection with any and all
Actions or threatened Actions (collectively, "Indemnifiable Losses") incurred or
suffered by any of the Equifax Indemnitees and arising out of, or due to, the
failure of Certegy, or any other member of the Certegy Group, to timely pay,
perform or otherwise discharge, any of the Certegy Liabilities or its
obligations under this Agreement.
21
Section 7.2. Equifax Indemnification of the Certegy Group.
If the Distribution occurs, on and after the Distribution Date, Equifax
shall indemnify, defend and hold harmless each member of the Certegy Group and
each of their respective directors, officers, employees and agents (collectively
the "Certegy Indemnitees") from and against any and all Indemnifiable Losses
incurred or suffered by any of the Certegy Indemnitees and arising out of, or
due to, the failure of Equifax, or any other member of the Equifax Group, to
timely pay, perform or otherwise discharge, any of the Equifax Liabilities or
its obligations under this Agreement or any Related Agreement.
Section 7.3. Insurance and Third Party Obligations.
No insurer or any other third party shall be, by virtue of the foregoing
indemnification provisions, (a) entitled to a benefit it would not be entitled
to receive in the absence of such provisions, (b) relieved of the responsibility
to pay any claims to which it is obligated, or (c) entitled to any subrogation
rights with respect to any obligation hereunder.
ARTICLE VIII
INDEMNIFICATION PROCEDURES
Section 8.1. Notice and Payment of Claims.
If any Equifax Indemnitee or Certegy Indemnitee (the "Indemnified Party")
determines that it is or may be entitled to indemnification by a party (the
"Indemnifying Party") under Article VII (other than in connection with any
Action or claim subject to Section 8.2), the Indemnified Party shall deliver to
the Indemnifying Party a written notice specifying, to the extent reasonably
practicable, the basis for its claim for indemnification and the amount for
which the Indemnified Party reasonably believes it is entitled to be
indemnified. After the Indemnifying Party shall have been notified of the amount
for which the Indemnified Party seeks indemnification, the Indemnifying Party
shall, within thirty (30) days after receipt of such notice, pay the Indemnified
Party such amount in cash or other immediately available funds (or reach
agreement with the Indemnified Party as to a mutually agreeable alternative
payment schedule) unless the Indemnifying Party objects to the claim for
indemnification or the amount thereof. If the Indemnifying Party does not give
the Indemnified Party written notice objecting to such claim and setting forth
the grounds therefor within the same thirty (30) day period, the Indemnifying
Party shall be deemed to have acknowledged its liability for such claim and the
Indemnified Party may exercise any and all of its rights under applicable law to
collect such amount. Any amount owed under this Section 8.1 that is past due
shall bear interest at a simple rate of interest per annum equal to the lesser
of 1% per month or the maximum amount permitted by law.
Section 8.2. Notice and Defense of Third Party Claims.
(a) Promptly following the earlier of (i) receipt of notice of the
commencement by a third party of any Action against or otherwise involving any
Indemnified Party, or (ii) receipt of information from a third party alleging
the existence of a claim against an Indemnified Party,
22
with respect to which indemnification may be sought pursuant to this Agreement
(a "Third Party Claim"), the Indemnified Party shall give the Indemnifying Party
written notice thereof. The failure of the Indemnified Party to give notice as
provided in this Section 8.2(a) shall not relieve the Indemnifying Party of its
obligations under this Agreement, except to the extent that the Indemnifying
Party is prejudiced by such failure to give notice. Within thirty (30) days
after receipt of such notice, the Indemnifying Party shall by giving written
notice thereof to the Indemnified Party, (i) acknowledge, as between the parties
hereto, liability for and, at its option, elect to assume the defense of such
Third Party Claim at its sole cost and expense, or (ii) object to the claim of
indemnification set forth in the notice delivered by the Indemnified Party
pursuant to the first sentence of this Section 8.2(a) setting forth the grounds
therefor; provided that if the Indemnifying Party does not within the same
thirty (30) day period give the Indemnified Party written notice acknowledging
liability or objecting to such claim and setting forth the grounds therefor, the
Indemnifying Party shall be deemed to have acknowledged, as between the parties
hereto, its liability for such Third Party Claim.
(b) Any contest of a Third Party Claim as to which the Indemnifying Party
has elected to assume the defense shall be conducted by attorneys employed by
the Indemnifying Party and reasonably satisfactory to the Indemnified Party;
provided that the Indemnified Party shall have the right to participate in such
proceedings and to be represented by attorneys of its own choosing at the
Indemnified Party's sole cost and expense. If the Indemnifying Party assumes the
defense of a Third Party Claim, the Indemnifying Party may settle or compromise
the claim without the prior written consent of the Indemnified Party; provided
that the Indemnifying Party may not agree to any such settlement pursuant to
which any such remedy or relief, other than monetary damages for which the
Indemnifying Party shall be responsible hereunder, shall be applied to or
against the Indemnified Party without the prior written consent of the
Indemnified Party, which consent shall not be unreasonably withheld.
(c) If the Indemnifying Party does not assume the defense of a Third Party
Claim for which it has acknowledged liability for indemnification under Article
VII, the Indemnified Party may require the Indemnifying Party to reimburse it on
a current basis for its reasonable expenses of investigation, reasonable
attorneys' fees and reasonable out-of-pocket expenses incurred in defending
against such Third Party Claim and the Indemnifying Party shall be bound by the
result obtained with respect thereto by the Indemnified Party; provided that the
Indemnifying Party shall not be liable for any settlement effected without its
consent, which consent shall not be unreasonably withheld. The Indemnifying
Party shall pay to the Indemnified Party in cash the amount for which the
Indemnified Party is entitled to be indemnified (if any) within fifteen (15)
days after the final resolution of such Third Party Claim (whether by
settlement, compromise, or by the final nonappealable judgment of a court of
competent jurisdiction or otherwise), or, in the case of any Third Party Claim
as to which the Indemnifying Party has not acknowledged liability, within
fifteen (15) days after the Indemnifying Party's objection has been resolved by
settlement, compromise, or the final nonappealable judgment of a court of
competent jurisdiction.
(d) Notwithstanding the foregoing, in no event shall either Equifax or
Certegy, or any Member of their respective Group, have any liability, whether
based on contract, tort (including, without limitation, negligence or strict
liability), warranty or any other legal or equitable
23
grounds, for any punitive, consequential, indirect, exemplary, special or
incidental loss or damage suffered by the other arising from or related to this
Agreement, including without limitation, loss of data, profits, interest or
revenue, or interruption of business, even if such party has been informed of or
might otherwise anticipated or foreseen the possibility of such losses or
damages; provided, however, that such limitations shall not apply to liabilities
which may arise as the result of willful misconduct of a party. Notwithstanding
the foregoing, any damages awarded or obtained (whether by settlement,
compromise or judgment) as a result of Third Party Claims shall be considered
direct damages for purposes of this Agreement.
ARTICLE IX
CONFIDENTIALITY
Section 9.1. Exclusions.
Notwithstanding anything to the contrary contained in this Agreement,
"Company Information" does not include any information that before being
divulged by the receiving party (a) has become generally known to the public
through no wrongful act of the receiving party; (b) has been rightfully received
by the receiving party from a third party without restriction on disclosure and
without, to the knowledge of the receiving party, a breach of an obligation of
confidentiality running directly or indirectly to the disclosing party; (c) has
been approved for release to the general public by a written authorization of
the disclosing party; (d) has been independently developed by the receiving
party without use, directly or indirectly, of Company Information received from
the disclosing party; or (e) has been furnished to a third party by the
disclosing party without restrictions on the third party's rights to disclose
the information.
Section 9.2. Confidentiality.
(a) Each party acknowledges, and shall cause each member of the Group to
acknowledge, that it is in possession of significant confidential or proprietary
information concerning the business, operations and assets of the members of the
other Group.
(b) Each party shall, and shall ensure that each member of its Group
shall, (i) receive and hold the Company Information of the other Group in trust
and in strictest confidence; (ii) protect such Company Information from
disclosure and in no event take any action causing, or fail to take the action
necessary in order to prevent, any such Company Information to lose its
character as Company Information; (iii) exercise at a minimum the same care it
would exercise to protect its own highly confidential information; and (iv) not
use, reproduce, distribute, disclose, or otherwise disseminate the Company
Information of the other Group, (A) except as authorized pursuant to this
Agreement or any Related Agreement, or (B) except pursuant to a requirement of a
governmental agency or of law without similar restrictions or other protections
against public disclosure; provided, however, with respect to disclosures
pursuant to (B) above, the receiving party must first give written notice of
such required disclosure to the disclosing party, take reasonable steps to allow
the disclosing party to seek to protect the confidentiality of the Company
Information required to be disclosed, make a reasonable effort to obtain a
protective order requiring that the Company Information so disclosed be used
only for the purposes for which disclosure is required, and shall disclose only
that part of the Company Information
24
which, in the written opinion of its legal counsel, it is required to disclose.
In no event shall the receiving party exercise less than a reasonable standard
of care to keep confidential the Company Information. Any and all reproductions
of such Company Information must prominently contain a confidential legend.
(c) The receiving party may make disclosures of the Company Information of
the disclosing party only to Representatives of the receiving party's Group (i)
who have a specific need to know such information; and (ii) who the receiving
party has obligated under a written agreement to hold such Company Information
in trust and in strictest confidence and otherwise to comply with the terms and
provisions of this Agreement or terms and conditions substantially similar to
and implementing the same restrictions and covenants as those set forth in this
Agreement. Certegy and Equifax agree, and shall ensure that each member of their
respective Group agrees, to diligently monitor each such Representative,
diligently enforce such agreements with its Representatives, and, upon request
by the other party, promptly to furnish to the other party a certified list of
the receiving party's Representatives having had access to such Company
Information.
(d) The covenants of confidentiality set forth in this Agreement (i) will
apply after the Closing Date to all Company Information disclosed to the
receiving party before, on and after the Closing Date and (ii) will continue and
must be maintained from the Closing Date through the termination of the
relationship under this Agreement between Equifax and Certegy (A) with respect
to Proprietary Information, the period during which the Proprietary Information
constituting a part of the Company Information retains its status as a "trade
secret" under applicable law; and (B) with respect to Confidential Information
constituting a part of the Company Information, for the shorter of a period
equal to three (3) years after the Closing Date, or until such Confidential
Information no longer qualifies as confidential under applicable law.
Section 9.3. Employee Confidentiality Agreements.
The members of each Group have entered into confidentiality and non-
disclosure agreements with their respective employees. To the extent that any
employee during or after employment violates any such agreement and such
violation is or may in the future be to the detriment of the other Group, at the
written request of the affected party, the other party shall, or shall cause the
appropriate members of its Group to, promptly bring and diligently pursue an
action against such employee if and to the extent reasonable under the
circumstances to preserve the value of the assets and Licensed Materials. The
Group member employing the employee violating his/her confidentiality and non-
disclosure agreement shall have the unilateral right to determine the forum for,
the manner of proceeding in, and legal counsel for such action and shall be
entitled to any damages or other relief against such employee awarded in such
action to the extent related to such Group's assets or business or to the
Licensed Materials. Such enforcement against and recovery by a Group member from
its breaching employee shall not constitute a release or sole remedy for the
members of the other Group injured by such breaching employee's actions, and
such members of the other Group may bring a claim against the Group members
employing the breaching employee for a breach of this Agreement. Each party
shall bear all out-of-pocket costs of pursuing such action and the other party
shall cooperate in connection therewith.
25
Section 9.4. Rights and Remedies.
(a) If either party, or any member of the Group, should breach or threaten
to breach any of the provisions of this Agreement, the non-breaching party, in
addition to any other remedies it may have at law or in equity, will be entitled
to a restraining order, injunction, or other similar remedy in order to
specifically enforce the provisions of this Agreement. Each party specifically
acknowledges, and shall cause each member of its respective Group to
acknowledge, that money damages alone would be an inadequate remedy for the
injuries and damage that would be suffered and incurred by the non-breaching
party as a result of a breach of any of the provisions of this Agreement. In the
event that either party, or a member of such party's Group, should seek an
injunction hereunder, the other party hereby waives, and shall cause each member
of its Group to waive, any requirement for the submission of proof of the
economic value of any Company Information or the posting of a bond or any other
security. In the event of a dispute between the parties, the non-prevailing
party shall pay all costs and expenses associated with resolving the dispute,
including, but not limited to, reasonable attorneys' fees.
(b) The receiving party shall notify the disclosing party immediately upon
discovery of any unauthorized use or disclosure of Company Information, or any
other breach of this Agreement by the receiving party or any Representative of
the receiving party's Group, and will cooperate with the disclosing party in
every reasonable way to help the disclosing party regain possession of its
Company Information and prevent its further unauthorized use or disclosure. The
receiving party shall be responsible for the acts of any Representative of its
Group that are in violation of this Agreement.
Section 9.5. Competitive Activities.
(a) Subject to the rights and obligations set forth in this Article IX,
each party understands and acknowledges that the other party's Group may now
market or have under development products that are competitive with products or
services now offered or that may be offered by it and/or members of its Group,
and the parties' communications hereunder will not serve to impair the right of
either party, or any member of its respective Group, to independently develop,
make, use, procure, or market products or services now or in the future that may
be competitive with those offered by the other party's Group, nor require either
party, and/or the members of its Group, to disclose any planning or other
information to the other party.
(b) Neither party will be restricted in using, in the development,
manufacturing and marketing of its products and services and its operations, any
data processing or network management or operation ideas, concepts, know-how and
techniques which are retained in the minds of employees who have had access to
the other party's Company Information subject to the restrictions set forth in
this Agreement.
Section 9.6. No Implied Rights.
Except as provided herein or in any Related Agreement, all Company
Information is and shall remain the property of the disclosing party and/or the
respective member of its Group. By disclosing Company Information to the
receiving
26
party's Group, the disclosing party and/or the members of its Group do(es) not
grant any express or implied rights or license to the receiving party's Group to
or under any patents, patent applications, inventions, copyrights, trademarks,
trade secret information, or other intellectual property rights heretofore or
hereafter possessed by the disclosing party and/or the members of its Group.
ARTICLE X
CONTINUED ASSISTANCE
Section 10.1. Continued Assistance and Transition.
(a) Following the Closing Date, Equifax shall, and shall cause each member
of the Equifax Group to, cooperate in an orderly transfer of the Transferred
Equifax Assets and the Transferred Equifax Third Party Agreements to Certegy or
the respective Designated Certegy Member. From time to time, at Certegy's
request and without further consideration, Equifax shall, and shall cause each
member of the Equifax Group, as applicable, to execute, acknowledge and deliver
such documents, instruments or assurances and take such other action as Certegy
may reasonably request to more effectively assign, convey and transfer any of
the Transferred Equifax Assets and the Transferred Equifax Third Party
Agreements. Equifax will assist Certegy in the vesting, collection or reduction
to possession of such Transferred Equifax Assets and Transferred Equifax Third
Party Agreements.
(b) Following the Closing Date, Certegy shall, and shall cause each member
of the Certegy Group to, cooperate in an orderly transfer of the Transferred
Certegy Assets and Transferred Certegy Third Party Agreements to Equifax or the
respective Designated Equifax Member. From time to time, at Equifax's request
and without further consideration, Certegy shall, and shall cause each member of
the Certegy Group, as applicable, to execute, acknowledge and deliver such
documents, instruments or assurances and take such other action as Equifax may
reasonably request to more effectively assign, convey and transfer any of the
Transferred Certegy Assets and Transferred Certegy Third Party Agreements.
Certegy will assist Equifax in the vesting, collection or reduction to
possession of such Transferred Certegy Assets and Transferred Certegy Third
Party Agreements.
Section 10.2. Records and Documents.
(a) As soon as practicable following the Closing Date, Equifax and Certegy
shall each arrange for the delivery to the other of existing corporate and other
documents (e.g. documents of title, source code, contracts, etc.) in its
possession relating to the Transferred Assets, Transferred Third Party
Agreements and assumed Liabilities.
(b) From and after the Closing Date, Equifax and Certegy shall each, and
shall cause each member of its Group to, afford the other and its accountants,
counsel and other designated Representatives reasonable access (including using
reasonable efforts to give access to person or firms possessing such
information) and duplicating rights during normal business hours to all records,
books, contracts, instruments, computer data and other data and information in
its possession relating to the assets, Liabilities, Licensed Materials, business
and affairs of the other (other than data and information subject to any
attorney/client or other privilege), insofar as such
27
access is reasonably required by the other, including without limitation, for
audit, accounting and litigation purposes.
(c) Notwithstanding the foregoing, either party may destroy or otherwise
dispose of any information at any time in accordance with the corporate record
retention policy maintained by such party with respect to its own records.
Section 10.3. Litigation Cooperation.
Upon written request, Equifax and Certegy shall, and shall cause each
member of its Group to, use reasonable efforts to cooperate in the evaluation
and defense of third party Actions arising out of the business of the other
party or of any member of the other party's Group prior to the Distribution Date
in which the requesting party or any member of its Group may from time to time
be involved, at the cost and expense of the requesting party. Such cooperation
shall include, without limitation, making its Representatives available as
witnesses or consultants to the extent that such persons may reasonably be
required in connection with such third party Actions.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Expenses.
Except as specifically provided in this Agreement or any Related Agreement,
all costs and expenses incurred in connection with the preparation, execution,
delivery and implementation of this Agreement and with the consummation of the
transactions contemplated by this Agreement (including transfer taxes and the
fees and expenses of all counsel, accountants and financial and other advisors)
shall be paid by Equifax.
Section 11.2. Notices.
All notices and communications under this Agreement shall be deemed to have
been given (a) when received, if such notice or communication is delivered by
facsimile, hand delivery or overnight courier, or (b) three (3) business days
after mailing if such notice or communication is sent by United States
registered or certified mail, return receipt requested, first class postage
prepaid. All notices and communications, to be effective, must be properly
addressed to the party to whom the same is directed at its address as follows:
If to Equifax, to:
Equifax Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxx, Chief Financial Officer
Fax: (000) 000-0000
with a copy to:
--------------
28
Equifax Inc.
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxx X. Xxxx, General Counsel
Fax: (000) 000-0000
If to Certegy, to:
Certegy Inc.
00000 Xxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx
Corporate Vice President, General Counsel and Secretary
Fax: (000) 000-0000
with a required copy to:
-----------------------
Certegy Inc.
X.X. Xxx 000
Xxxxxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxx
Corporate Vice President and Chief Financial Officer
Fax: (000) 000-0000
Either party may, by written notice so delivered to the other party in
accordance with this Section 11.2, change the address to which delivery of any
notice shall thereafter be made.
Section 11.3. Amendment and Waiver.
This Agreement may not be altered or amended, nor may any rights hereunder
be waived, except by an instrument in writing executed by the party or parties
to be charged with such amendment or waiver. No waiver of any terms, provision
or condition of or failure to exercise or delay in exercising any rights or
remedies under this Agreement, in any one or more instances, shall be deemed to
be, or construed as, a further continuing waiver of any such term, provision,
condition, right or remedy or as a waiver of any other term, provision or
condition of this Agreement.
Section 11.4. Entire Agreement.
This Agreement, together with the Related Agreements, constitutes the
entire understanding of the parties hereto with respect to the subject matter
hereof, superseding all negotiations, prior discussions and prior agreements and
understandings relating to such subject matter. To the extent that the
provisions of this Agreement are inconsistent with the provisions of any other
Related Agreement, the provisions of this Agreement shall prevail with respect
to the subject matter hereof.
29
Section 11.5. Parties in Interest.
Neither of the parties hereto may assign its rights or delegate any of its
duties under this Agreement without the prior written consent of each other
party. This Agreement shall be binding upon, and shall inure to the benefit of,
the parties hereto and their respective successors and permitted assigns.
Nothing contained in this Agreement, express or implied, is intended to confer
any benefits, rights or remedies upon any person or entity other than members of
the Equifax Group and the Certegy Group and the Equifax Indemnitees and Certegy
Indemnitees under Articles VII and VIII hereof.
Section 11.6. Further Assurances and Consents.
In addition to the actions specifically provided for elsewhere in this
Agreement, each of the parties hereto will use its reasonable efforts to (a)
execute and deliver such further instruments and documents and take such other
actions as any other party may reasonably request in order to effectuate the
purposes of this Agreement and to carry out the terms hereof and (b) take, or
cause to be taken, all actions, and to do, or cause to be done, all things,
reasonably necessary, proper or advisable under applicable laws, regulations and
agreements or otherwise to consummate and make effective the transactions
contemplated by this Agreement, including without limitation, using its
reasonable efforts to obtain any consents and approvals and to make any filings
and applications necessary or desirable in order to consummate the transactions
contemplated by this Agreement; provided that no party hereto shall be obligated
to pay any consideration therefor (except for filing fees and other similar
charges) to any third party from whom such consents, approvals and amendments
are requested or to take any action or omit to take any action if the taking of
or the omission to take such action would be unreasonably burdensome to the
party or its Group or the business thereof.
Section 11.7. Severability.
The provisions of this Agreement are severable and should any provision
hereof be void, voidable or unenforceable under any applicable law, such
provision shall not affect or invalidate any other provision of this Agreement,
which shall continue to govern the relative rights and duties of the parties as
though such void, voidable or unenforceable provision were not a part hereof.
Section 11.8. Governing Law.
This Agreement shall be construed in accordance with, and governed by, the
laws of the State of Georgia, without regard to the conflicts of law rules of
such state.
Section 11.9. Counterparts.
This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original instrument, but all of which together shall
constitute but one and the same agreement.
30
Section 11.10. Disputes.
Any Disputes arising under this Agreement, whether based on contract, tort,
statute or otherwise, including but not limited to, disputes in connection with
claims by third parties, shall be resolved in accordance with Section 15.10 of
the Distribution Agreement; provided that the parties shall retain the rights
and remedies specified in Section 9.4 hereof.
Section 11.11. Force Majeure.
Neither party will be liable for any loss or damage due to causes beyond
its control, including, but not limited to, fire, accident, labor difficulty,
war, power or transmission failures, riot, Acts of God or changes in laws and
regulations, provided that the affected party must (a) promptly notify the other
party in writing and furnish all relevant information concerning the event of
force majeure; (b) use reasonable efforts to avoid or remove the cause of its
nonperformance; and (c) proceed to perform its obligations with dispatch when
such cause is removed.
Section 11.12. Documentation.
Prior to the Distribution Date and from time to time thereafter, the
parties will prepare, maintain and update schedules of the Transferred Equifax
Assets, the Transferred Certegy Assets, the Licensed Equifax Materials, the
Licensed Certegy Materials, and the Third Party Agreements, the Third Party Use
Rights and the Third Party Rights transferred and/or provided by each Group to
the other Group, in such detail as shall be appropriate for the management and
administration of these items as described in this Agreement.
Section 11.13. Headings.
The Article and Section headings set forth in this Agreement are included
for administrative, organizational and convenience purposes, and are not
intended to affect the meaning of the provisions set forth in this Agreement or
to be used in the interpretation of this Agreement.
31
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the day and year first above written.
EQUIFAX INC.
By: /s/ Xxxx X. Xxxx
------------------------------------------
Title: Corporate Vice President, General
---------------------------------------
Counsel and Secretary
------------------------------------
Date: June 30, 2001
----------------------------------------
CERTEGY INC.
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------------
Title: Corporate Vice President, General
---------------------------------------
Counsel and Secretary
------------------------------------
Date: June 30, 2001
----------------------------------------
32
